136 S.E. 865 | W. Va. | 1927
This writ of error is prosecuted from a judgment of the circuit court of Marshall county in dismissing the writ of habeas corpus on the hearing thereof.
F. L. Schad, the petitioner, was arraigned before the mayor of Moundsville on a charge of appearing in public view on a street of said city in a state of intoxication, pleaded guilty and was fined. Shortly after he was arrested and brought before the justice for unlawfully operating an automobile on the public highway within the county of Marshall and state of West Virginia while under the influence of intoxicating liquors and in an intoxicated condition. To this latter charge he pleaded *46 not guilty. He was found guilty and sentenced to sixty days in jail and payment of a fine of twenty-five dollars. An appeal was taken to the circuit court, where defendant tendered the plea of nolo contendere, which was accepted by the court, and a sentence pronounced of sixty days in jail and a fine of twenty-five dollars and costs. He was later arrested on a capias and placed in jail. Schad then petitioned the circuit court for a writ of habeas corpus, setting up the facts above stated, together with certified copies of the orders entered in each instance, and alleging that he was being unlawfully detained by the sheriff of Marshall county in said county jail. On the return day the respondent, F. A. McNinch, sheriff and ex-officio jailor of Marshall county, filed his return, and moved to quash the writ, and upon the hearing the court dismissed the writ and sustained respondent's motion to quash the same. It is from this order that the petitioner prosecutes this writ, assigning as error (1) that the justice did not have jurisdiction; (2) that the circuit court did not have authority to sentence him to confinement in jail upon the plea of nolocontendere; and (3) that the judgment of the circuit court was void.
According to the quoted decisions involving the common law construction of such a plea, the weight of authority authorizes courts to entertain it, or not, at their discretion, in that class of misdemeanors for which punishment must be imposed by fine, imprisonment, or both. Applying this principle to the case under consideration, what have we? A plea of not guilty was interposed before the justice. The record of the circuit court shows that "this day came the defendant in this action and entered a plea of nolo contendere to the complaint and warrant", and thereupon "the court considered, adjudged and ordered that the defendant be confined in the Marshall county jail for a period of sixty days" and pay a fine of Twenty-five Dollars. This was the minimum imprisonment and fine under the statute. The maximum penalty thereunder being a fine of One Hundred Dollars and imprisonment for six months. § 88, Chapter 43, Code. The plea of not guilty entered before the justice was not withdrawn. The general rule is stated in 16 C. J. p. 1270, to be: "that in absence of a statute to the contrary *50
where the defendant enters a plea of nolo contendere or guilty it is the right and duty of the court to pronounce sentence the same as though a verdict of guilty had been found against him without any independent adjudication of guilt, even though other pleas were not expressly withdrawn." Although not directly stated to have been accepted, the record showing that the defendant pleaded nolo contendere, and thereupon the court passed sentence upon him, it may be held that it showed an accepted plea, because the action of the court thereupon would clearly import that it had been accepted. But, though the plea be valid, the defendant charges in his petition to the circuit court for a writ of habeas corpus that said plea "was entered for petitioner by his counsel without his knowledge or consent and through a misapprehension of the law and the facts". We have held in State v. Stevenson,
The circuit court did not err in dismissing defendant's petition for habeas corpus.
Affirmed.